McCulley, James W. - Decision and Ruling of the Commissioner, July 22, 2015
Decision and Ruling of the Commissioner, July 22, 2015
STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 BROADWAY
ALBANY, NEW YORK 12233-1010
In the Matter
- of -
the Alleged Violation of Article 9
of the Environmental Conservation Law and
Part 196 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of
New York,
- by -
JAMES W. McCULLEY,
Respondent.
DEC Case No. R5-20050613-505
DECISION AND RULING OF THE COMMISSIONER
July 22, 2015
Decision and Ruling of the Commissioner
On May 19, 2009, a decision and order of the New York State Department of Environmental Conservation ("DEC" or "Department"), together with a hearing report, was issued in the Matter of James W. McCulley , an administrative enforcement proceeding. The decision and order ("2009 Order") addressed the alleged violation by respondent James W. McCulley of section 196.1 of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), arising from his operation of a motor vehicle within the State forest preserve[1] on a portion of Old Mountain Road[2] in the Town of North Elba. The hearing report recommended that the Commissioner grant respondent's motion to dismiss Department staff's complaint and the 2009 Order adopted that recommendation.
By papers dated June 5, 2009, Department staff moved for clarification of various portions of the 2009 Order. Department staff expressly stated that it was not seeking a reversal of the dismissal of the action against respondent McCulley. The Adirondack Council and the Adirondack Park Agency ("APA"), by papers dated June 29, 2009 and July 9, 2009, respectively, petitioned to intervene with respect to staff's motion. By letter dated July 2, 2009, respondent McCulley opposed Department staff's motion, and by letters dated July 10, 2009 respondent opposed or otherwise objected to the Adirondack Council's and the APA's requests to intervene.
By motion dated September 9, 2009, respondent requested that: (1) the petitions of the APA and Adirondack Council be stricken; (2) then-Commissioner Alexander B. Grannis be recused as decision maker; and (3) all ex parte communications involving the Commissioner, Chief Administrative Law Judge James T. McClymonds, DEC Staff, APA, and the Adirondack Council be disclosed immediately. On September 17, 2009, respondent supplemented its motion, presenting further argument regarding alleged ex parte communications.
Following receipt of further submissions, then-Acting Commissioner Peter M. Iwanowicz, in a ruling dated December 30, 2010 ("2010 Ruling"), granted Department staff's motion for clarification on the following issues:
(1) the obligations of the Towns of North Elba and Keene to improve and maintain Old Mountain Road;
(2) whether ATV and snowmobile use of highways is lawful where a town has not opened a highway;
(3) the criteria for statutory abandonment of a highway;
(4) the extent to which hiking, snowshoeing, skiing, and similar recreational uses promoted by the Department pursuant to the Adirondack Park State Land Master Plan and/or Unit Management Plans are indications of travel or use as a highway under the New York Highway Law; and
(5) the legal implications of dismissing the case either as a matter of law or as a failure to meet the burden of proof.
(2010 Ruling at 3-4). The Acting Commissioner also granted APA's motion and, in part, the motion of the Adirondack Council to intervene in the proceeding ( id. at 2), and denied respondent's motion ( id. at 2, 5-10). As stated by the Acting Commissioner, the granting of Department staff's motion for clarification "does not in any way affect the dismissal of the enforcement action against respondent" ( id. at 2). The Acting Commissioner set a schedule for the submission of briefs on the five (5) issues identified for clarification ( id. at 10-11).[3]
In accordance with the schedule set by the Acting Commissioner, Department staff submitted its brief addressing issues to be clarified on February 4, 2011 ("Staff brief"). Reply briefs were to be filed by Friday, March 11, 2011. Assistant Commissioner for Hearings and Mediation Services Louis A. Alexander later granted Adirondack Council's unopposed request to extend the date of submission for all reply briefs to March 18, 2011, with a receipt time of "no later than 5:00 p.m."
APA, Adirondack Council and respondent all submitted reply briefs dated March 18, 2011 ("APA reply," "Adirondack Council reply," and "McCulley reply," respectively). In an email dated March 21, 2011, respondent McCulley formally objected to the APA reply as untimely because the emailed brief was submitted after 5:00 p.m. Friday, March 18, 2011, and also objected to APA's reply on the ground that it was not signed by an attorney or representative of the APA. In response, the APA submitted, by letter dated March 22, 2011, a signed final page of its reply to correct "the inadvertent omission of the signature." APA further stated that its reply was electronically transmitted to the Office of Hearings and Mediation Services and the parties over counsel's signature at 5:08 p.m. on March 18, 2011.
Respondent also objected on March 22, 2011 to the Adirondack Council reply because of a delay in its filing with the DEC Commissioner due to an electronic transmission failure. The Adirondack Council had provided an explanation of that failure, by letter dated March 21, 2011, and noted that all the other parties had timely received the Adirondack Council reply.
By letter dated April 5, 2011, Assistant Commissioner Alexander addressed respondent McCulley's objections. Although no specific signatory requirement exists, it is expected that parties sign papers submitted in any Department administrative proceeding before the Office of Hearings and Mediation Services. Nevertheless, the Assistant Commissioner determined that because the transmittal letter accompanying the APA reply was signed by counsel, the filing deficiency was remedied. He concluded that neither the initial failure to sign the APA reply itself nor the short delay in the electronic transmission of the APA reply, was prejudicial to respondent. He also concluded that the electronic transmission failure associated with the filing of the Adirondack Council reply with the DEC Commissioner was not prejudicial to respondent. The Assistant Commissioner accepted the APA reply and the Adirondack Council reply into the record and I affirm his determination.
Respondent did not specifically address any of the issues Department staff raised on its motion for clarification and did not set forth any additional arguments. Respondent cited to his prior filings in the proceeding before the administrative law judge ("ALJ") as well as the evidence, testimony and facts set forth in the evidentiary hearing held from November 13 to 15, 2007. Respondent argued that the 2009 Order is correct on the law and facts and "demands that the [2009] Order . . .remain unaltered and the motions for clarification and reconsideration . . . be denied in their entirety" (McCulley reply at 2-3).
The Assistant Commissioner provided the parties with the opportunity to submit sur-replies and set a schedule for their submission ( see Asst. Commissioner Letter, April 5, 2011). Department staff submitted its sur-reply, dated April 29, 2011 ("Staff sur-reply"). The APA, in an e-mail dated April 29, 2011, and the Adirondack Council, in a letter dated April 29, 2011, stated that they would not be submitting a sur-reply. Respondent McCulley, in an e-mail dated April 29, 2011, stated that he would not submit a sur-reply and continued his objection to the consideration of Department staff's motion for clarification.
Department staff, in its sur-reply, argued that the 2009 Order must be clarified because of several discrepancies between it and the accompanying hearing report. Specifically, staff reiterated its argument that the 2009 Order: (1) goes outside the hearing report's findings and recommendations by addressing the Town of Keene's and Town of North Elba's obligations regarding Old Mountain Road; (2) is ambiguous because it does not state whether Department staff's case was dismissed as a matter of law or for failure to meet the burden of proof; and (3) materially differs from the hearing report's analysis of New York Highway Law § 205 ( see Staff sur-reply at 2-3).
Staff further states that the 2009 Order overlooked evidence that the public right-of-way with respect to Old Mountain Road ceased to exist prior to 1986, and that the Master Plan supports the factual conclusion that Old Mountain Road was abandoned prior to 1986 ( see Staff sur-reply at 3-5). Subsequent recreational use, staff contends, did "not recreate the public right of way that was extinguished by abandonment before the recreational use resumed" ( id. at 5).
As mentioned, Department staff is not seeking to reinstate the charges against respondent McCulley and this Decision and Ruling does not affect the dismissal of the enforcement action against him. After due consideration and, as discussed below, I am, however, vacating those portions of the 2009 Order that: (a) concluded that Old Mountain Road was a town road that had not been abandoned; (b) concluded that Old Mountain Road is a legal right-of-way for public use pursuant to 6 NYCRR 196.1(b)(5); and (c) discussed and set forth obligations and responsibilities of the Towns of Keene and North Elba over Old Mountain Road. In addition, I am providing further clarification of the 2009 Order regarding the significance of the filing of a certificate of abandonment by a town superintendent and the basis for the dismissal of the complaint.
Discussion
A Commissioner has the inherent authority to clarify a Commissioner decision where the Commissioner deems it necessary and to correct errors in law or fact in an underlying decision ( see 2010 Ruling at 3 [citing administrative department precedent regarding reconsideration]).
Adirondack Park State Land Master Plan
I have reviewed the submissions filed pursuant to the Acting Commissioner's 2010 Ruling as well as the underlying record, and it is clear that the Adirondack Park State Land Master Plan ("Master Plan") was not considered in evaluating the status of Old Mountain Road in the administrative proceeding.[4]
Executive Law § 816 was enacted to ensure that the natural resources within State parkland are protected and preserved. It provides for a master plan for management of state lands and individual unit management plans to guide the development and management of state lands in the Adirondack Park. The first Master Plan for management of State lands was approved by Governor Nelson Rockefeller in July 1972. Subsequent amendments to the Master Plan have been prepared by the APA, in consultation with the Department, and approved by the Governor after public hearing (see Executive Law § 816[2]). The Department, in consultation with APA, develops individual unit management plans for specific areas throughout the forest preserve (see Executive Law § 816[1]). The Master Plan, which governs activities within the Adirondack forest preserve, has been construed to have "the force of a legislative enactment" ( Helms v Reid , 90 Misc. 2d 583, 604 [Sup Ct Hamilton County 1977]; see also Matter of Adirondack Mountain Club v Adirondack Park Agency , 33 Misc. 3d 383, 387 [Sup Ct Albany County 2011]).
Old Mountain Road is within the Sentinel Range in an area classified wilderness in the Adirondack Park State Land Master Plan. The Master Plan submitted to the Governor in 1979 noted that Old Military Road (Old Mountain Road) was not generally passable by motorized vehicles "but has not yet been appropriately barricaded as required by wilderness guidelines" (1979 Master Plan at 46). However, the Master Plan that was approved in November 1987 stated, at page 51, that Old Military Road (Old Mountain Road), "a former town road 3.5 miles in length, has been closed and the area now fully conforms to wilderness standards " (emphasis added). The identical language appears in the Master Plan updated in 2001 (2001 Master Plan at 66). Public use of motor vehicles (including ATVs and snowmobiles) and motorized equipment are prohibited in wilderness areas, although recreational uses such as skiing, hiking, and snowshoeing are permitted uses (see 2001 Master Plan at 23-24).
The Adirondack Council, in its papers, argues that the 2009 Order's conclusion that Old Mountain Road is an existing town road contradicts the Master Plan, which, the Adirondack Council argues, classifies the road as "abandoned within the Forest Preserve" (Adirondack Council reply at 11). According to the Adirondack Council, allowing motor vehicles to use Old Mountain Road "would violate the terms and provisions of the [Master Plan] and negatively impact the Forest Preserve" ( id. at 14).
APA contends that the Master Plan's determination that Old Mountain Road was closed by 1987 is a factual determination that is binding on the Department ( see APA reply at 7-8). The APA notes that the determinations of the Master Plan regarding Old Mountain Road were never contested by the Towns of Keene or North Elba at the time of the Master Plan adoption in 1987 (which indicated that the road was closed and in full conformance with wilderness standards), and that the text of the Master Plan was developed jointly by APA and the Department with formal public notice and hearings ( see APA reply at 5-9). APA notes further that the text of the 1987 Master Plan was subscribed to by the Department prior to its approval by the Governor ( id. at 7).[5]
Even though the ALJ took official notice of the Master Plan in the 2007 administrative hearing, Department staff did not offer the Master Plan into evidence, or otherwise rely upon Executive Law § 816 or the Master Plan in support of its argument that Old Mountain Road was abandoned ( see e.g. Staff Attorney's Brief Opposing Respondent's Motion for Judgment during Trial dated February 25, 2008; Staff Attorney's Closing Brief dated February 25, 2008).
For purposes of considering issues regarding road abandonment in such proceedings, however, the Master Plan must be considered, and it was error to fail to proffer the Master Plan as evidence that Old Mountain Road was closed.
Moreover, Department staff, in its brief addressing the issues for clarification, has marshaled the evidence from the record in support of the argument that Old Mountain Road was abandoned because of lack of use and physical obstructions from at least 1976 to 1986, and that the road ceased to exist by operation of Highway Law § 205(1) prior to the time when the Adirondack Ski Touring Council undertook maintenance of portions of Old Mountain Road.
I have considered Staff's arguments as well as the underlying record in the proceeding. Staff states that any through travel by the public in a normal manner that one would expect for a highway did not exist ( see e.g. Staff brief at 11-13). Staff notes that the physical condition of Old Mountain Road indicates that it was not used for travel in "forms reasonable and normal" ( see id. at 14-15 [noting obstruction by beaver ponds, trees growing in the roadbed and other covering vegetation]; see also Adirondack Council reply, at 8-9). Furthermore, the recreational use by snowshoers, hikers, or skiers, through lands classified as wilderness in the forest preserve does not preclude a finding of abandonment ( see e.g. Staff brief at 19-21; see also Adirondack reply at 10-11).[6]
On considering, among other things, the physical conditions that staff cites with respect to Old Mountain Road and the types of recreational uses that occurred, I find that the public was not using Old Mountain Road for highway purposes. The record, as staff recites, contains evidence that the road was obstructed for approximately ten years, more than the six years required for abandonment to occur ( see e.g. Staff brief, at 25-26 [noting lack of maintenance, lack of a bridge for a period of about ten years, and beaver pond impacts], 27-28; see also Staff sur-reply, at 3-4). I concur with staff's position that the road ceased to exist by operation of Highway Law § 205. Accordingly, the hearing report's analysis regarding the Highway Law and the related discussion on abandonment that led to the conclusion that Old Mountain Road had not been abandoned and that the road was a legal right-of-way for public use are rejected.
Based on consideration of the Master Plan which states that the road is closed and the record, I hereby find that Old Mountain Road is abandoned, and it does not continue to exist as a public highway. Accordingly, the conclusion in the 2009 Order that Old Mountain Road is an existing town road that has not been abandoned and that the road is a legal right-of-way for public use is hereby vacated.
Notwithstanding the above holding, however, staff does not seek, and I decline to order, reinstatement of the complaint against respondent. Accordingly, dismissal of the complaint as against respondent is not vacated.
Obligations of the Town of Keene and the Town of North Elba
Department staff also seeks to clarify the obligations of the Town of Keene and the Town of North Elba to improve and maintain Old Mountain Road as referenced in the 2009 Order. The 2009 Order states that respondent successfully established "that both towns bear the responsibility to maintain [Old Mountain Road] in a way that will allow safe passage for the multitude of uses on it, including cross country skiing, snowshoeing, walking, horseback riding, and the operation of all terrain vehicles, snowmobiles, and motor vehicles" (2009 Order at 5). The 2009 Order further states that "the towns may be liable for any adverse consequences to drivers, to their vehicles, and . . . to other users of the road" from motor vehicle use on Old Mountain Road ( id. ).
Department staff indicates that the 2009 Order creates a new legal obligation whereby the Towns will need to take action (i.e., cutting trees and vegetation, removing materials, filling wetlands, and destroying the natural environment) to widen and improve Old Mountain Road to make it suitable for motor vehicles. Staff contends that such actions conflict with Article 14 of the New York State Constitution, the Executive Law, the Master Plan, and judicial precedent. Staff also references the "forever wild" provision in the State Constitution ( see NY Const, art XIV, § 1). Staff further argues that constructing a highway through Forest Preserve land "would be anathema to Article 14 of our State Constitution" (Staff brief at 33), and that neither town has the authority to widen and improve Old Mountain Road to make it suitable for motor vehicles ( see id. ).
Staff contends that the scope of the 2009 Order should have been limited to the rights and responsibilities of respondent McCulley, the respondent in this matter. Because neither the Town of North Elba nor the Town of Keene was a party to the proceeding, and because such pronouncements regarding perceived responsibilities could unduly affect the rights of the two Towns, Department staff maintains that "it was inappropriate to speculate as to [the towns'] obligations" (Staff brief at 37) and such assertions are "outside the scope of the proceeding and beyond the department's jurisdiction" ( id. at 38).
Department staff's argument is compelling. Neither the Town of North Elba nor the Town of Keene was a party in this proceeding and the extent of their obligations, if any, was not at issue. Any statements as to their obligations was beyond the scope of the proceeding. Furthermore the record of the proceeding did not provide a basis to direct that the Towns undertake any of the remedial actions referenced in the 2009 Order with respect to Old Mountain Road. Accordingly, the discussion in the 2009 Order regarding the Towns' obligations over the road ( see 2009 Order at 5) and jurisdictional responsibilities of the Towns or their highway departments ( see 2009 Order at 2-5) is hereby vacated.
ATV and Snowmobile Use of a Highway
Department staff seeks to clarify whether ATV and snowmobile use of a highway is lawful where a town has not opened that highway. Specifically, staff seeks clarification of the statement in the 2009 Order that "both towns [of Keene and North Elba] bear the responsibility to maintain [Old Mountain Road] in a way that will allow safe passage for the multitude of uses on it, including...the operation of all terrain vehicles, snowmobiles, and motor vehicles" (Staff brief at 38 [quoting 2009 Order at 5]). As I have vacated that portion of the 2009 Order on the ground that any discussion of the responsibilities of the Towns was beyond the scope of the proceeding, this request for clarification is moot.
Filing of a Certificate of Abandonment
Department staff seeks clarification of that portion of the 2009 Order that states "the road is deemed abandoned when the town superintendent, based on written consent of the town board majority, files a description of the highway abandoned with the town clerk" (see 2009 Order at 3). Staff argues that this misstates the requirements for abandonment pursuant to Highway Law § 205(1) -- specifically that a town's highway superintendent must file a certificate of abandonment for a highway to be abandoned. Staff argues that such filing is merely a ministerial act and the failure to file the certificate does not affect whether a highway has been abandoned by six (6) years of non-use (see Staff brief at 8-9). The Adirondack Council advances the same argument that the filing of the certificate of abandonment is a ministerial act and the failure to file the certificate does not preclude abandonment (Adirondack Council reply at 6).
Section 205(1) of the Highway Law states in relevant part:
[E]very highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right-of-way. The town superintendent...shall file, and cause to be recorded in the town clerk's office of the town a written description, signed by him, and by said town board of each highway and public right-of-way so abandoned...
New York courts have held that the filing of a certificate of abandonment by the town superintendent is a ministerial act, and if the evidence demonstrates that the road has been abandoned by six years of non-use, then the road is deemed abandoned by operation of law, not by filing the certificate ( see e.g. Abess v Rowland , 13 AD3d 790, 792 [3d Dept. 2004]; Matter of Faigle v Macumber , 169 AD2d 914, 916 [3d Dept. 1991]; Daetsch v Taber , 149 AD2d 864, 865 [3d Dept. 1989]; Matter of Wills v Town of Orleans , 236 AD2d 889, 890 [4th Dept. 1997]; Pless v Town of Royalton , 185 AD2d 659, 659 [4th Dept. 1992] aff'd 81 NY2d 1047 [1993]).
Department staff is correct in its argument that a failure by a town superintendent to file a certificate of abandonment would not preclude a finding that the road was, in fact, abandoned by non-use. The 2009 Order is so clarified.
Recreational Uses as Indicia of Travel or Use as a Highway
Department staff seeks to clarify the extent to which hiking, snowshoeing, skiing, and similar recreational uses promoted by the Department pursuant to the Master Plan and/or Unit Management Plans are indications of travel or use as a highway under section 205(1) of the Highway Law. Staff argues that recreational uses "and even snowmobiling and ATVing do not constitute travel or use of a route for highway purposes" and that the road's purpose must be considered in order to determine whether it is, in fact, a highway or simply a trail (Staff brief at 17-18).
Whether recreational activities are sufficient to preclude abandonment is a fact-specific determination, dependent upon the type and intensity of the recreational activity and where that activity occurs. However, in this instance, based on the Master Plan and the record before me, I hold that Old Mountain Road had been closed and abandoned and no legal right-of-way for public use exists. Therefore, Department staff's request for clarification is moot.
Department staff also requests that I clarify "how recreational uses that are incompatible with normal highway uses should be weighed in any similar future case regarding violations of 6 NYCRR Part 190 or 196" (Staff brief at 24). Because of the fact-specific nature of any such determination, I decline to address staff's request regarding future cases.
Dismissal of the Case
Department staff seeks to clarify the language used in the 2009 Order regarding staff's failure to meet its burden of proof and whether the case was dismissed as a matter of law or for failure to meet its burden of proof. For example, the 2009 Order states that "Department staff did not meet its burden in this matter" (2009 Order at 1-2) or demonstrate that "Old Mountain Road was, as a matter of law, an abandoned road pursuant to [the] Highway Law . . . or that the road is not a legal right-of-way for public use" ( id. at 6).
I recognize the potential ambiguity arising out of the cited language. In this proceeding, Department staff bore the burden of proof on all charges and matters affirmatively asserted in its complaint against respondent ( see 6 NYCRR 622.11[b][1]). The 2009 Order dismissed staff's complaint on the ground that Department staff failed to meet its burden of proof. As previously noted, I am however vacating various portions of the 2009 Order.
Conclusion
As previously stated, this Decision and Ruling does not, in any way, affect the dismissal of the enforcement action against James W. McCulley. However, it was a critical omission for the Master Plan not to be proffered on the issue of the status of Old Mountain Road for the Commissioner's consideration. The Master Plan and the related legal arguments in the submitted papers, as well as the record below, make it clear that Old Mountain Road had been closed and abandoned and that no legal right-of-way for public use existed.
Accordingly, other than the dismissal of the charges against respondent James W. McCulley, I am hereby vacating those portions of the 2009 Order that (a) concluded that Old Mountain Road was a town road that had not been abandoned; (b) concluded that Old Mountain Road is a legal right-of-way for public use pursuant to 6 NYCRR 196.1(b)(5); and (c) discussed and set forth obligations and responsibilities of the Towns of Keene and North Elba over Old Mountain Road.
New York State Department
of Environmental Conservation
By: /s/
Joseph J. Martens
Commissioner
Dated: July 22, 2015
Albany, New York
[1] Section 196.1(a) of 6 NYCRR provides that "(n)o person shall operate a motorized vehicle in the forest preserve" except in limited circumstances. The exceptions at issue in this proceeding involved 6 NYCRR 196.1(b)(1) where operation of motorized vehicles is permitted on roads that are under the jurisdiction of a town highway department, and 6 NYCRR 196.1(b)(5) where operation of motorized vehicles is permitted where a legal right-of-way exists for public or private use.
[2] Old Mountain Road is also known as Old Military Road, as well as other name designations. I will refer to it as Old Mountain Road in this Decision and Ruling.
[3] Respondent McCulley, in a letter dated January 19, 2011, requested an inquiry to confirm that former Acting Commissioner Peter M. Iwanowicz signed the 2010 Ruling while he still held the position of Acting Commissioner. Chief Administrative Law Judge ("Chief ALJ") James T. McClymonds certified, via letter dated January 24, 2011, that the former Acting Commissioner did in fact sign the 2010 Ruling on December 30, 2010. By letter dated March 16, 2011, respondent rejected the Chief ALJ's certification and requested an affidavit from former Acting Commissioner Iwanowicz stating that he signed the 2010 Ruling on December 30, 2010. Respondent's request was then forwarded to Assistant Commissioner for Hearings and Mediation Services, Louis A. Alexander. After reviewing respondent's inquiry, Assistant Commissioner Alexander determined that the Chief ALJ's certification was sufficient proof that the former Acting Commissioner signed the 2010 Ruling, and further stated that the Acting Commissioner had given the Assistant Commissioner the 2010 Ruling, signed on December 30, 2010, on the morning of December 31, 2010 (see Asst. Commissioner Alexander Letter, April 7, 2011).
[4] I am taking official notice of the 1972, 1979, 1987 and 2001 versions of the Master Plan pursuant to 6 NYCRR 622.11(a)(5) ( see also Hearing Report at 4 n 12 [taking official notice of same versions]).
[5] The APA argues that the Commissioner does not have jurisdiction to interpret the Master Plan, which states that Old Mountain Road is closed, in an administrative proceeding before the Department in such a way as to contradict or reverse the Master Plan's findings (see APA reply at 9-10). As noted in this Decision and Ruling, at the hearing Department staff did not rely on the Master Plan as evidence of the abandonment of Old Mountain Road and the Master Plan was not before the Commissioner as part of staff's case. The 2009 Order did not and was not meant to interpret the Master Plan.
[6] In that regard, based upon my review of the record of this proceeding, I do not agree that the findings of fact in the hearing report ( see Hearing Report, at 8-10 [Findings of Fact 22-25]) demonstrate that the use of Old Mountain Road was of a nature that would preclude a finding of abandonment.
